Elements of Offenses - 18 U.S.C. §666A et seq.
6.18.666A1A Theft Concerning a Program Receiving Federal Funds (18 U.S.C. §666(a)(1)(A)) (revised 2017)
6.18.666A1A-1 Theft Concerning a Program Receiving Federal Funds - Agent of Organization or Government Defined(revised 2017)
6.18.666A1A-2 Theft Concerning a Program Receiving Federal Funds - Received Federal Funds Defined (revised 2017)
6.18.666A1A-3 Theft Concerning a Program Receiving Federal Funds - Stole, Embezzled, Converted, and Misapplied Defined
6.18.666A1A-4 Theft Concerning a Program Receiving Federal Funds - Belonging to and In the Care, Custody, or Control of Defined
6.18.666A1A-5 Theft Concerning a Program Receiving Federal Funds - Determining Value of Property
6.18.666A1B Solicitation of a Bribe by an Agent of a Program Receiving Federal Funds (18 U.S.C. §666(a)(1)(B)) (revised 2017)
6.18.666A1B-1 Solicitation of a Bribe - Thing of Value Defined
6.18.666A1B-2 Solicitation of a Bribe - Corruptly with Intent to be Influenced Defined– revised 11/2013
6.18.666A1B-3 Solicitation of a Bribe - Determining Value of Transaction – revised11/2013
6.18.666A2 Bribery of an Agent of a Program Receiving Federal Funds (18 U.S.C. §666(a)(2))– revised11/2013
6.18.666A2-1 Bribery of an Agent - Thing of Value Defined
6.18.666A2-2 Bribery of an Agent - Corruptly with Intent to Influence Defined – revised11/2013
6.18.666A2-3 Bribery of an Agent - Determining Value of Transaction– revised11/2013
6.18.666A1A Theft Concerning a Program Receiving Federal Funds (18 U.S.C. §666(a)(1)(A))
Count (No.)of the indictment charges the defendant(name)with (describe offense; e.g., embezzling from a federally funded program), which is a violation of federal law.
In order to find the defendant guilty of this offense, you must find that the government proved each of the following five elements beyond a reasonable doubt:
First: That at the time alleged in the indictment, (name) was an agent of(specify organization, government, or agency);
Second: That in a oneyear period(specify organization, government, or agency)received federal benefits in excess of $10,000;
Third: That (name) [(stole) (embezzled) (obtained by fraud) (knowingly converted) (intentionally misapplied)] property;
Fourth: That the property [(stolen) (embezzled) (knowingly converted) (intentionally misapplied)] [(was owned by) (was in the care, custody or control of)] (specify organization, government or agency); and
Fifth: That the value of the property (stolen) (embezzled) (obtained by fraud) (knowingly converted) (intentionally misapplied) was at least $5,000.
Comment
Hon. Leonard Sand, John S. Siffert, Walter P. Loughlin, Steven A. Reiss & Nancy Batterman, Modern Federal Jury Instructions Criminal Volumes 27A-2 (Matthew Bender 2003) [hereinafter, Sand et al., supra].
18 U.S.C. § 666(a) provides:
Whoever, if the circumstance described in subsection (b) of this section exists
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency
commits a federal offense.
18 U.S.C. § 666(b) provides:
The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
18 U.S.C. § 666(d) provides the following definitions of government agency, local, and State:
(2) the term "government agency" means a subdivision of the executive, legislative, judicial, or other branch of government, including a department, independent establishment, commission, administration, authority, board, and bureau, and a corporation or other legal entity established, and subject to control, by a government or governments for the execution of a governmental or intergovernmental program;
(3) the term "local" means of or pertaining to a political subdivision within a State;
(4) the term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
1
In United States v. Willis, 844 F.3d 155 (3d Cir. 2016), the court concluded that the Legislature of the Virgin Islands fell within this definition.
1
In addition to the elements instruction, the court should give the following instructions as appropriate: Instructions 6.18.666A1A-1 (Theft Concerning a Program Receiving Federal Funds - Agent of Organization or Government Defined), 6.18.666A1A-2 (Theft Concerning a Program Receiving Federal Funds - Received Federal Funds Defined), 6.18.666A1A-3 (Theft Concerning a Program Receiving Federal Funds - Stole, Embezzled, Converted, and Misapplied Defined), 6.18.666A1A-4 (Theft Concerning a Program Receiving Federal Funds - Belonging to and In the Care, Custody, or Control of Defined), and 6.18.666A1A-5 (Theft Concerning a Program Receiving Federal Funds - Determining Value of Property).
The embezzled or stolen funds need not be traceable to the federal funds. Sabri v. United States, 541 U.S. 600 (2004); see also Salinas v. United States, 522 U.S. 52 (1997). It is sufficient federal involvement if the organization receives over $10,000 of federal funds in the year.
The agent need not be someone in a position of trust, and a breach of trust is not a requirement for violation of the statute. See United States v. Brann, 990 F.2d 98 (3d Cir. 1993).
(Revised 10/2017
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6.18.666A1A-1 Theft Concerning a Program Receiving Federal Funds - Agent of Organization or Government Defined
The first element the government must prove beyond a reasonable doubt is that at the time alleged in the indictment,(name)was an agent of(specify organization, government or agency).
An ''agent'' is a person authorized to act on behalf of another person, organization or government. Employees, partners, directors, officers, managers, and representatives are all agents of the organization or government with which they are associated.
[An agent does not necessarily have any control over the federal funds received by the (organization) (government) (agency).]
[A person may be an agent of more than one government agency. An employee of one agency within a larger government department is an agent of that larger department as well.]
[Elected officials are agents of the government which they were elected to serve.]
[A person may be an agent of an organization without being an employee of that organization. An outside consultant who exercises significant managerial responsibility within the organization is an agent of that organization if the consultant is authorized to act on behalf of the organization.]
Comment
1
Sand et al., supra, 27A3.
18 U.S.C. § 666(d)(1) provides that as used in this section
the term "agent" means a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative.
The court should include any portions of the bracketed language that are appropriate.
In United States v. Vitillo, 490 F.3d 314 (3d Cir. 2007), the Third Circuit considered the definition of agent as used in 18 U.S.C. § 666. The defendants were charged with submitting fraudulent invoices for work they never performed while serving as engineers and engineering consultants for a regional airport that received federal funds. The court concluded that the defendants could qualify as agents under the statute even though they had no control over the federal funds and had to bill for the federal funds they received on an hourly basis. The court pointed out that “‘agent’ is merely a person with authority to act on behalf of the organization receiving federal funds, and can include, inter alia, an ‘employee,’‘officer,’‘manager’ or ‘representative’ of that entity.” The court also held that an independent contractor could qualify as an agent. See also United States v. Andrews, 681 F.3d 509, 530 (3d Cir. 2012) (recognizing that agent need not have authority); United States v. Beldini, 443 F. App'x. 709 (3d Cir. 2011) (rejecting narrow construction of term "agent").
In United States v. Willis, 844 F.3d 155 (3d Cir. 2016), the Third Circuit held that the Executive Director of the Legislature of the Virgin Islands was an agent of the government “given his substantial power to enter into contracts on behalf of the Legislature.” Willis, 844 F.3d at 167.
The agent need not be someone in a position of trust. See United States v. Brann, 990 F.2d 98 (3d Cir. 1993).
(Revised 2017)
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6.18.666A1A-2 Theft Concerning a Program Receiving Federal Funds - Received Federal Funds Defined
The second element the government must prove beyond a reasonable doubt is that in a oneyear period, (specify organization, government, or agency) received federal benefits in excess of $10,000.
To prove this element, the government must establish that the (organization) (government) (agency) received, during a oneyear period (beginning on (specify start date)), benefits in excess of $10,000 under a federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or some other form of federal assistance.
[The government is not required to prove that the benefits were paid directly to (specify organization, government, or agency) by the federal government, but it must prove that the funds paid to the (organization) (government) (agency) through an intermediary government did in fact originate as federal benefits under (specify federal program). If some of the funds paid to (specify organization, government or agency) originated with the federal government and some from the state government, it is for you to determine which were federal benefits and that those federal benefits were in excess of $10,000.]
1
[The oneyear period must begin no more than 12 months before the defendant began committing the offense and must end no more than 12 months after the defendant stopped committing the offense. The one-year period may include time both before and after the commission of the offense.]
Comment
Sand et al., supra, 27A4.
18 U.S.C. § 666(d)(5) provides that as used in this section
the term "in any oneyear period" means a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense.
The court should include any portions of the bracketed language that are appropriate.
In Fischer v. United States, 529 U.S. 667 (2000), the Court held that the receipt of Medicare funds by a hospital was sufficient to satisfy this requirement of the statute even though the patients were also beneficiaries of the federal funds. Federal funds may have more than one beneficiary. In Fischer, the Court noted that “[t]he payments are made not simply to reimburse for treatment of qualifying patients but to assist the hospital in making available and maintaining a certain level and quality of medical care, all in the interest of both the hospital and the greater community.” 529 U.S. at 680. The Court further explained:
Our discussion should not be taken to suggest that federal funds disbursed under an assistance program will result in coverage of all recipient fraud under § 666(b). Any receipt of federal funds can, at some level of generality, be characterized as a benefit. The statute does not employ this broad, almost limitless use of the term. Doing so would turn almost every act of fraud or bribery into a federal offense, upsetting the proper federal balance. To determine whether an organization participating in a federal assistance program receives “benefits,” an examination must be undertaken of the program's structure, operation, and purpose. The inquiry should examine the conditions under which the organization receives the federal payments. The answer could depend, as it does here, on whether the recipient's own operations are one of the reasons for maintaining the program. Health care organizations participating in the Medicare program satisfy this standard.
529 U.S. at 681 See also United States v. Willis, 844 F.3d 155 (3d Cir. 2016) (holding that the evidence was sufficient to establish that the Government of the Virgin Islands received the required benefit under the statute).
In United States v. Willis, 844 F.3d 155 (3d Cir. 2016), the Third Circuit rejected the argument that the Legislature of the Virgin Islands was a separate entity from the Government of the Virgin Islands and, further, that the Executive Director of the Legislature could not be convicted of violating § 666 because the Legislature did not receive federal funds in its own right. The court emphasized that the statute is broad in scope.
1
The government does not need to establish a nexus between the criminal activity and the federal funds. Sabri v. United States, 541 U.S. 600 (2004); Salinas v. United States, 522 U.S. 52 (1997); United States v. Willis, 844 F.3d 155 (3d Cir. 2016). It is sufficient federal involvement if the organization receives over $10,000 of federal funds in the year.
(Revised 2017)
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6.18.666A1A-3 Theft Concerning a Program Receiving Federal Funds - Stole, Embezzled, Converted, and Misapplied Defined
The third element the government must prove beyond a reasonable doubt is that (name) [(stole) (embezzled) (obtained by fraud) (knowingly converted) (intentionally misapplied)] property.
[To steal money or property means to take someone else's money or property without the owner's consent with the intent to deprive the owner of the value of that money or property.]
[To embezzle money or property means to intentionally take or convert to one's own use money or property of another after that money or property lawfully came into the possession of the person taking it by virtue of some office, employment, or position of trust.]
[To obtain by fraud means to intentionally take something by false representations, suppression of the truth, or deliberate disregard for the truth.]
[To knowingly convert money or property means to knowingly appropriate or use such money or property without proper authority for the benefit of oneself or any other person who was not the rightful owner with the intent to deprive the rightful owner of the money or property.]
1
[To intentionally misapply money or property means to intentionally use money or property of (specify organization, government, or agency) knowing that such use is unauthorized or unjustifiable or wrongful. Misapplication includes the wrongful use of the money or property for an unauthorized purpose, even if such use benefitted the (organization) (government) (agency).]
[Property includes other things of value besides money and tangible objects. It also includes intangible things like the value of an employee's time and services.]
Comment
Sand et al., supra, 27A5.
The court should include any portions of the bracketed language that are appropriate.
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6.18.666A1A-4 Theft Concerning a Program Receiving Federal Funds - Belonging to and In the Care, Custody, or Control of Defined
The fourth element the government must prove beyond a reasonable doubt is that the property [(stolen) (embezzled) (obtained by fraud) (knowingly converted) (intentionally misapplied)][(was owned by) (was in the care, custody, or control of) (specify organization, government or agency)].
[Although the words ''care,'' ''custody,'' and ''control'' have slightly different meanings, for the purposes of this element they express a similar idea. That is that the (organization) (government) (agency) had control over and responsibility for the property [even though it was not the actual owner of the property at the time of (name)'s actions.]]
Comment
Sand et al., supra, 27A6.
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6.18.666A1A-5 Theft Concerning a Program Receiving Federal Funds - Determining Value of Property
The fifth and final element the government must prove beyond a reasonable doubt is that the value of the property [(stolen) (embezzled) (obtained by fraud) (knowingly converted) (intentionally misapplied)]was at least $5,000. The government is not required to prove the exact amount of money or the value of the property at issue, but the government must prove beyond a reasonable doubt that the value of the money or property was $5,000 or more.
The word ''value'' means face, par or market value, or cost price, either wholesale or retail, whichever is greater. ''Market value'' means the price a willing buyer would pay a willing seller at the time the property was stolen.
[Property does not include legitimate salary, wages, fees, or other compensation paid or expenses paid or reimbursed in the ordinary course of business.]
[If you find that (name) devised a scheme or plan to take sums of money or property from (specify organization, government, or agency), on a recurring basis through a series of acts, you may aggregate or add up the value of property obtained from this series of acts by (name) to meet this $5,000 requirement so long as those acts occur within the same one-year time period.]
1
The government does not have to prove that the property[(stolen) (embezzled) (obtained by fraud) (knowingly converted) (intentionally misapplied)]by (name)was received by the(organization) (government) (agency)as federal benefits or derived from the federal benefits received by the (organization) (government) (agency). What the government must prove beyond a reasonable doubt is that the defendant [(stole) (embezzled) (obtained by fraud) (knowingly converted) (intentionally misapplied)] from(specify organization, government, or agency)at the same time that the (specify organization, government, or agency)received federal benefits in excess of $10,000 during a one-year period. In other words, the government does not need to establish a connection between the criminal activity and the federal funds.
Comment
Sand et al., supra, 27A7.
18 U.S.C. § 666 does not define the term “value.” 18 U.S.C. § 641, which deals with theft or conversion of public money, property, or records, provides that “[t]he word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
18 U.S.C. § 666(c) provides:
This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.
If the defendant’s scheme involves a number of smaller thefts or conversions, the value may be aggregated to reach the required minimum value of $5,000. See United States v. Sanderson, 966 F.2d 184, 189 (6th Cir. 1992); United States v. Webb, 691 F. Supp. 1164
(N.D. Ill. 1988).
The Supreme Court has held that the funds in question need not be traceable to the federal funds. Sabri v. United States, 541 U.S. 600 (2004); see also Salinas v. United States, 522 U.S. 52 (1997).
The court should include any portions of the bracketed language that are appropriate.
1
6.18.666A1B Solicitation of a Bribe by an Agent of a Program Receiving Federal Funds (18 U.S.C. § 666(a)(1)(B))
Count (No.)of the indictment charges the defendant(name)with (describe offense; e.g., soliciting a bribe while acting as an agent for a federally funded program), which is a violation of federal law.
In order to find the defendant guilty of this offense, you must find that the government proved each of the following five elements beyond a reasonable doubt:
First: That at the time alleged in the indictment, (name) was an agent of(specify organization, government, or agency);
Second: That (specify organization, government, or agency)received federal benefits in excess of $10,000 in a oneyear period;